Li and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mrs Jin Li for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse her mother, Mrs Huiyuan Liu, a Visitor (Class FA) visa. The delegate had refused the visa on the basis that Mrs Liu did not pass the character test, as she had a substantial criminal record due to a conviction for embezzlement and a sentence of 15 years imprisonment. The delegate then exercised their discretion under section 501(1) of the *Migration Act 1958* (Cth) and Ministerial Direction No. 65 to refuse the visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether Mrs Liu passed the character test and, if not, whether to exercise its discretion to refuse the visa.

The Tribunal was required to determine two issues: first, whether Mrs Liu passed the character test as defined in section 501(6) of the *Migration Act*, and second, if she did not pass the character test, whether her visa should be refused, taking into account the relevant considerations in Part B of Ministerial Direction No. 65. The character test is not passed if a person has a substantial criminal record, which includes being sentenced to a term of imprisonment of 12 months or more.

The Tribunal found that Mrs Liu did not pass the character test, as she had been convicted of embezzlement and sentenced to 15 years imprisonment, which constitutes a substantial criminal record under section 501(7)(c) of the *Migration Act*. In considering whether to exercise its discretion to refuse the visa, the Tribunal gave significant weight to the seriousness of the offence and the 15-year sentence. It found that Mrs Liu showed little appreciation of the seriousness of her offence and had provided no objective evidence of rehabilitation, leading to an unacceptable risk to the Australian community. While acknowledging that the best interests of Mrs Li's minor children and the impact on family members were relevant considerations, the Tribunal concluded that these did not outweigh the primary considerations of protecting the Australian community from criminal conduct and the expectations of the Australian community that a person with such a serious criminal history should be denied entry. The Tribunal affirmed the decision to refuse Mrs Liu's visa.